Amit Agarwal vs State of West Bengal

I.P. Mukerji, J.—This writ challenges an order dated 31st March, 2016 passed by the District Magistrate and Chairperson, District Disaster Management Authority, Darjeeling. He has invoked Section 30(2)(xxiii) of the Disaster Management Act, 2005.

By this order he has asked the writ petitioner to stop construction of a hotel building. The reason why this order of stoppage of construction was being passed is contained in the recitals to that order which are as follows ;

"Whereas, it appears that this building is constructed beyond the permissible limit of height as applicable in Darjeeling Municipality;

And

Whereas it appears that floors in the building exceed the maximum permissible floors allowed in Darjeeling Municipality;

And

Whereas, it appears that the construction is being done in densely populated area;

And

Whereas, this region has witnessed various earthquakes and landslides in the recent past;"

Mr. Bhattacharya, learned Advocate representing the State initially took the point of jurisdiction. He said that this Court had jurisdiction over Municipality matters. The order dated 31st March, 2016 was made under Section 30(2)(xxiii) of the Disaster Management Act, 2005.

It is true that this order is passed under Section 30(2)(xxiii) of the said Act. Any writ arising out of the said Act would normally fall in the residuary jurisdiction of this Court. But if one reads the recitals to the said order, it clearly alleges violation of the law relating to Municipality, by the petitioner.

Furthermore, Mr. Bikash Ranjan Bhattacharya, learned senior Advocate for the petitioner submits that the direction to stop construction is wrongful assumption of power of the Municipality by the District Magistrate. This assumption of power is also under challenge.

Therefore, in my opinion, a substantial cause of action has arisen under the Municipal law.

Although a part of cause of action may relate to the residuary jurisdiction of this Court, since a substantial cause of action relates to my jurisdiction, in my opinion I have the power to entertain this writ.

It appears from the records that the District authorities started action against the writ petitioner alleging public nuisance under Section 133 of the Code of Criminal Procedure. A case was started against the petitioner which was numbered as MR case No. 36. On 2nd December, 2015 an order was passed by the Sub-divisional Magistrate, asking the construction to be stopped. A criminal revisional application was made to this High Court (CRR 4303 of 2015) where this order was stayed by an order dated 30th December, 2015. The final order was made by this Court on 18th March, 2016 asking the writ petitioner to show cause before the concerned Magistrate and treating the order passed by the Sub-divisional Magistrate as a "conditional one".

Mr. Billawadal Bhattacharya submitted that the petitioner was carrying on with the construction in violation of this order.

The District Magistrate started parallel proceedings under Section 30(2)(xxiii) of the Disaster Management Act, 2005.

The said sub-section is inserted below;

"(xxiii) examine the construction in any area in the district and, if it is of the opinion that the standards for the prevention of disaster or mitigation laid down for such construction is not being or has not been followed, may direct the concerned authority to take such action as may be necessary to secure compliance of such standards."

Now this sub-section very plainly provides that the district authority would have the power to examine the construction and if it found that it was not according to the standards for the prevention of "disaster or mitigation", it could recommend action to the concerned authority.

The concerned authority is the Municipality. The District Magistrate has assumed the power of the municipal authority and ordered stoppage of construction. Furthermore, the order appears to be splendidly vague. No details have been provided with regard to the construction beyond the permissible limit. Neither any permissible limit has been mentioned in the order nor there is any mention of the number of floors, which the petitioner is to erect and to what extent it exceeds this limit. When the order refers to a densely populated area neither the location nor the density of population is mentioned.

On such vague grounds a drastic order of stoppage of construction has been passed.

As far as the submission of Mr. Billadal Bhattacharya relating to the other proceedings is concerned, in my opinion, that is quite separate. If there is violation of any order the authority is free to take steps.

There is no point in inviting affidavits in this case because the order on the face of it cannot stand.

The order dated 31st March, 2016 is set aside.

This writ application is accordingly allowed. This will not preclude the District Magistrate to take steps according to law.

Mr. Billadal Bhattacyarya, prays for stay of operation of this order which is considered and rejected.

Urgent certified photocopy of this order, if applied for, be supplied to the parties on priority basis.

Let a plain photocopy of this order duly counter signed by the Assistant Registrar (Court) be handed over to the learned counsel for the parties upon usual undertaking.